REGULATORY IMPACT ANALYSIS SCREENING REPORT. Proposal for legislation regarding septic tanks and other on-site wastewater treatment systems

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1 REGULATORY IMPACT ANALYSIS SCREENING REPORT Proposal for legislation regarding septic tanks and other on-site wastewater treatment systems 1. Description of Policy Context Failing on-site wastewater treatment systems can be a threat to human health and the environment. Reports by the EPA have identified septic tanks as a potential source of water pollution, particularly of groundwater sources which are an important source of drinking water for many people. Contamination by pathogenic micro-organisms, originating in human sewage, animal manures and other organic wastes, is a major threat to groundwater quality. A recent HSE report regarding the quality of drinking water from private wells in counties Sligo and Leitrim revealed a rate of 76% non-compliance with standards required under the Drinking Water Regulations of Coliforms, E.Coli, Iron and Manganese were the parameters most commonly exceeded. From a public health viewpoint, the presence of E.Coli, which results from faecal contamination, is considered the most serious. Groundwater plays an essential role in the hydrological cycle and is critical for maintaining wetlands, river flows and surface water ecosystems. In most rivers in Ireland, more than 30% of the annual average flow is derived from groundwater. In low flow periods, this figure can rise to more than 90%. Therefore, reductions in groundwater quality may directly affect related surface water and terrestrial ecosystems. The effect of human activity on groundwater quality will eventually impact on the quality of associated aquatic ecosystems and directly dependent terrestrial ecosystems if natural attenuation reactions such as biodegradation and adsorption in the subsurface are not sufficient to remove the contaminants. At present there are no national performance standards or monitoring arrangements for the estimated 441,000 septic tanks and other on-site waste water treatment systems serving unsewered properties in Ireland. Research carried out as part of the preparation of the River Basin Management Plans estimated that as many as 25,000 septic tanks have the potential to impact on groundwaters and 120,000 have the potential to impact on surface waters, due to their location in vulnerable areas. 2. Judgment of the European Court of Justice (ECJ) On 29 October 2009, the ECJ ruled against Ireland in relation to septic tanks and other on-site wastewater treatment systems. The Court found that by failing to adopt the necessary legislation to comply with Articles 4 and 8 of Council Directive 75/442/EEC (The Waste Directive) as regards domestic waste waters disposed of in the countryside through septic tanks and other individual waste water treatment systems, Ireland has failed to fulfill its obligations under that directive. 3. Legislative Deficit The ECJ ruling highlights deficiencies in the existing Irish legislation. It is clear that the existing legal framework dealing with septic tanks and other on-site waste water treatment systems (details below), does not suffice to satisfy the requirements of the Waste Directive and to protect human health and the environment. To address the ruling, it is necessary to bring forward 1

2 legislation which will provide for the setting of standards for the performance and operation of all septic tanks and similar on-site wastewater treatment systems. The legislation will also provide for the inspection of the performance of such treatment systems and will set out the responsibilities of households served by those systems, including requirements to carry out remedial actions where necessary. 4. Enforcement of ECJ Judgment The ECJ ruling was issued on 29 October It should be noted that in this case Ireland s noncompliance dates back to 1977, when the Waste Directive was adopted. The Commission has signaled its general expectation that ECJ judgments should be addressed within 12 to 24 months from the date of the judgment. In November 2010, the Commission issued a Letter of Formal Notice indicating its concern regarding what it considers to be the slow pace at which Ireland was progressing compliance with the Court ruling. On 10 th May 2011, the Government approved the priority drafting of a Bill which would address the legislative deficit and ensure compliance with the Court s ruling. However, in August 2011, the Commission formally applied to the Court requesting the imposition of significant financial penalties to include a lump-sum penalty of 2.7 million and daily fines for continued non-compliance of more than 26,000 (equivalent to more than 9.5 million per annum). 5. Legislative Requirements and Proposed Response Specific Requirements of Waste Directive Article 4 of the Directive requires Member States to take necessary measures to ensure that waste is recovered or disposed of without endangering human health or without using processes or methods which could harm the environment. Article 8 requires Member States to take necessary measures to ensure that any holder of waste has it handled by a public or private waste collector or recovers or disposes of it himself in accordance with the provisions of the Directive. The Directive states that the essential objective of all provisions relating to waste management should be the protection of human health and the environment against harmful effects caused by the collection, transport, treatment, storage and tipping of waste. The Directive requires, inter alia, that establishments carrying out their own waste disposal at the place of production should be subject to appropriate periodic inspection by the competent authorities. 6. Existing Provisions Governing Septic Tanks and Other On-site Waste Water Treatment Systems 1. Building Regulations Modern, performance-based, Building Regulations were introduced under Section 3 of the Building Control Act 1990 with effect from 1 June The Building Regulations apply to the construction of new buildings and to the material alterations/extensions/change of use of existing buildings. 2

3 The Building Regulations comprise of 12 Parts, including Part D (Materials and Workmanship) and Part H (Drainage and Waste Water Disposal) which are relevant in the context of septic tanks. The Department has published a set of 12 Technical Guidance Documents (TGDs) giving guidance on how to comply with Parts A - M of the Building Regulations. The Regulations have been amended periodically, as required. This has been done following a public consultation process in each case. Part D of the Building Regulations (Materials and Workmanship) Part D requires that all works must be carried out in a workmanlike manner, meaning that work must be carried out skillfully and efficiently. All materials used must be suitable for the purpose for which they are used and the conditions in which they are used. Innovative materials or systems, such as waste water treatment systems, must have specified appropriate Agrément Certification from the Irish Agrément Board or equivalent certification from an Approval Body in a member state. Part H (Drainage and Waste Water Disposal) of the Building Regulations Part H of the Building Regulations sets out the requirements for Drainage and Waste Water Disposal and includes requirements for septic tanks and other on-site wastewater treatment systems. Following a public consultation process, Part H was revised in 2010 to call up the EPA s 2009 Code of Practice see below. New European Standard A new European Standard for small wastewater treatment plants came into force on 1st July This Standard was adopted by the European Standards Committee (CEN) and transposed in Ireland by the NSAI as I.S. EN :2005. The new standard specifies requirements, test methods, marking and evaluation of conformity for packaged and /or site-assembled domestic wastewater treatment plants used for the treatment of raw domestic sewage and serving populations up to 50 inhabitants. The evolving requirement for new on-site wastewater treatment systems to comply with the standard and the recommended performance levels for treatment systems which have been determined by the Irish Agrément Board has been brought to the attention of Local Authorities by Circular Letters issued by the Department in November 2006 and in January Environmental Protection Agency (EPA) Code of Practice on Wastewater Treatment Systems Serving Single Houses The EPA published a Wastewater Treatment Manual on treatment systems for single houses in 2000 to assist planning authorities, developers, system manufacturers and designers, system installers and system operators to deal with the complexities of on-site systems. A review of the manual, following consultation with major stakeholders, including an extensive public consultation process, was finalised in 2009 and the updated Code of Practice was published in October The purpose of the new Code of Practice is to provide guidance on the provision of wastewater treatment and disposal systems for new single houses. Its key messages are; The importance of proper site assessment, taking account of not only local conditions specific to the proposed site but also of wider experience in the area, patterns of development, provisions of the development plan and other policies; 3

4 The need for the design of on-site wastewater disposal systems to be specific to local conditions; The need for follow-through by developers, homeowners and supervisory authorities to ensure that installation, commissioning and maintenance are as per design and attendant recommendations and conditions. The Code, which was prepared having regard to the latest standards and guidelines, will assist planning authorities, builders, system manufacturers, system designers, system installers and system operators to deal with the complexities of on-site systems for single houses. It provides guidance on; An assessment methodology to determine site suitability for on-site wastewater treatment systems and to identify minimum environmental protection requirements; A methodology to select suitable wastewater treatment systems for sites in un-sewered rural areas; Information on the design and installation of septic tank systems, filter systems, packaged treatment systems and tertiary treatment systems and maintenance requirements. In January 2010, the Department issued Circular PSSP 1/10 to all planning authorities and An Bord Pleanála regarding implementation of the new Code of Practice. It is considered that implementation of the new Code for new developments requiring the use of septic tanks and other on-site waste water treatment systems will ensure that such developments meet the requirements of the Waste Directive, as long as a system requiring an on-going process of correct operation, maintenance, inspection and de-sludging is implemented,. However, the Code of Practice does not directly address the issue of the existing stock of on-site treatment systems serving un-sewered properties. Enforcement Under the Building Control Acts, responsibility for compliance with the Building Regulations is a matter for the builder and owner of the building. Enforcement of the Regulations is the responsibility of the Local Building Control Authorities. New powers providing significantly stronger enforcement measures and higher fines were introduced under the Building Control Act Planning and Development Septic tanks provide an efficient and effective means of treating domestic wastewater, provided the systems are properly installed and maintained and have adequate percolation. Most problems with septic tanks relate to the porosity and percolation capacity of the site. No single treatment system will reduce the overall volume of effluent coming from a single house treatment system. If the site cannot absorb the effluent, irrespective of whether it is treated to a high standard or not, or what type of treatment system is in place, the problem is not the treatment system but one of site suitability. 4

5 Under the Planning Acts planning permission is required for the installation of septic tanks and other on-site treatment systems. The standardised planning application form provided for under Article 22 of the Planning and Development Regulations 2006 requires planning applications to be accompanied by details of proposed wastewater disposal systems and it is a standard feature of any planning permission that septic tanks conform with the appropriate standards. These standards provide for a site suitability assessment based on: A trial hole to determine groundwater level; A second trial hole to determine percolation, and A visual inspection of the site and trial hole and allow for any necessary conditions to be imposed in this regard. The purpose of these trials/tests is to determine the water table at the site, the soil and the subsoil characteristics, and the percolating properties of the soil from which the extent of the percolation area required is obtained. The information determined during these tests may be required to support a planning application. Standard Recommendations on Septic Tank and Percolation Systems were issued to all local authorities under Circular Letter 1/92. The circular set out the potential dangers to water supplies from septic tanks. The importance of giving high priority to the protection of groundwater in the context of development controls under the Planning Acts was also brought to the attention of planning authorities by Circular Letter SP 5/03. This guidance included the need to design proposed on-site septic tank systems so as to take account of the circumstances of the site and the vulnerability of groundwater resources, the importance of proper supervised installation and commissioning of such systems by competent persons and the need to monitor compliance with terms of the relevant planning permission, including a regular programme of testing and monitoring of the performance of such systems. Many local authorities are now using Geographical Information Systems to track the location of new development in rural areas and the Planning Guidelines for Sustainable Rural Housing recommend the use of such systems in identifying appropriate policy responses to the issue of rural settlement in County Development Plans required under Section 10 of the Planning and Development Act The Sustainable Rural Housing Guidelines, as augmented by the provisions of the Development Plan and Development Management Guidelines, also clearly flag the importance of ensuring that new developments in un-sewered areas are provided with proper wastewater treatment and disposal facilities. Such guidelines are important policy frameworks that planning authorities and An Bord Pleanála must work with in the performance of their functions under the planning legislation. On 5 January 2010, the Department issued Circular PSSP 1/10 to all planning authorities and An Bord Pleanála. The circular advises new arrangements to apply for the assessment of on-site waste water disposal systems for single houses in the light of the new EPA Code of Practice regarding such systems. The circular emphasises that the Code is a key element in ensuring that the planning system fully addresses the protection of water quality when assessing development proposals for new housing in rural areas and in line with the Planning Guidelines for Sustainable 5

6 Rural Housing issued by the Department in Planning authorities must ensure that each development in an un-sewered area must undergo a site suitability assessment and that both the site itself and the on-site waste water treatment system to be installed are appropriate and meet required standards. Enforcement As septic tank pollution is a health hazard, local authorities are obliged to fully enforce any condition attaching to planning permissions regarding the installation of septic tanks and to ensure that percolation areas are provided in accordance with the standard recommendations. Under planning legislation, enforcement of planning control is a matter for the planning authority, which can take action if a development does not have the required permission, or where terms of permission have not been met. The Planning and Development Act 2000 gave substantial additional powers to planning authorities in the enforcement area, for instance, they are now entitled to retain fines imposed by Courts for planning offences to help finance more active planning control. Also, the fact that an application for retention permission has been made is no longer a defence to a prosecution for un-authorised development. A planning authority may issue an enforcement notice, non-compliance with which is an offence, in connection with an unauthorised development, requiring such steps as the authority considers necessary to be taken within a specified period. If an enforcement notice is not complied with the planning authority may itself take the specified steps and recover the expense incurred in doing so. A planning authority may also seek a court order requiring any particular action to be done or not to be done. Under the Development Management Guidelines, Planning Authorities were requested in June 2007 to prioritise enforcement and to draft conditions attaching to planning permissions in an enforceable manner. A dedicated website has also been established as a portal through which planning authorities can share expertise and technical insight regarding enforcement activities. Although the Planning Act only applies to new developments, it should be noted that developments carried out prior to the introduction of the Planning and Development Act 2000 are subject to (1) the overall requirement under the Local Government (Water Pollution) Act that persons shall not pollute surface and ground waters and (2) the terms and conditions of the planning consent issuing at the time of decision of the relevant planning application. 3. Water Services Act 2007 The Water Services Act consolidated and updated the previously-existing diverse body of water services legislation into a single modern enactment. It underpins modern standards of public health and environmental protection in the area of water services provision. Section 70 of the Act places a duty of care on the owner of a premises to ensure that treatment systems for wastewater not in the charge of a water services provider (i.e. including septic tanks) are kept so as not to : (a) cause, or be likely to cause, a risk to human health or the environment, including waters, the atmosphere, land, soil, plants or animals, or (b) create a nuisance through odours. 6

7 Non-compliance with the duty of care requirement is an offence, for which penalties of up to 5,000 and up to 3 months imprisonment on summary conviction, or 15 million in fines and imprisonment of up to 5 years on conviction on indictment apply. Enforcement Extensive powers of inspection and enforcement are provided under the Water Services Act to facilitate the implementation of the duty of care provision. An authorised person, i.e. an officer of a local authority, may enter and inspect any premises for the purpose of performing any function under the Act. Once on a premises, an authorised person may carry out tests, take samples, make excavations and request information from the occupants. Where, having carried out enquiries, an authorised person considers that there is a risk to human health or to the environment; he or she may direct the owner or occupier of the premises to take any measures considered necessary to remove that risk. An authorised person can do anything necessary to ensure that the measures required under the direction are carried out. Related costs incurred by a water services authority may be recovered from the owner or occupier of the premises. Water Services Act 2007 and ECJ Ruling In its ruling, the Court stated that the 2007 Act could not be relied upon by Ireland as it had not been enacted or entered into force at the time the EU Commission issued its reasoned opinion in bringing the case against Ireland. However, the provisions of the Act, as they relate to septic tanks and other on-site treatment systems, would not have sufficed to change the Court s ruling. This is due to the fact that there is no provision in the Act which would satisfy the minimum EU criteria for environmental inspections in Member States as set out in guidelines issued by the European Parliament and Council on 4 th April 2001 (2001/331/EC). 7. Key Changes Proposed The proposed legislation will augment the existing legislation with the following being the key changes to be introduced: Specify the duties and responsibilities of householders, including registration of their septic tanks and on-site waste water treatment systems and regular servicing / de-sludging of those systems, Establish a risk-based inspection system, Appoint inspectors subject to strict criteria regarding qualifications and training etc., Require householders required to carry out remediation work arising from inspections, Establish supervisory and administrative roles for the EPA and the water services authorities. 8. Provision for Penalties It will be necessary to establish and define offences and penalties for non-compliance. 9. Objectives The objectives of the proposed legislation are as follows: Transpose the provisions of the Waste Directive as they apply to on-site wastewater treatment systems and related waste water. Avoid imposition of EU fines and further cases being brought by the EU Commission. 7

8 Reduce the potential for pollution of ground and surface waters by domestic waste water discharging, leaking or escaping from septic tanks and other on-site wastewater treatment systems. 10. Costs v Benefits It is difficult estimate the costs involved, particularly to householders, due to the lack of information regarding rates of failure of existing on-site systems and the degree of remediation work required. Waste water treatment systems such as septic tanks are situated below ground and not readily accessible. In some cases, pollution may not visible to the property owner and may in fact arise some distance away from the property. Primary responsibility for any remediation works will have to fall on the owner or occupier. What this might entail is difficult to state - it could involve some limited maintenance or repair works. It could also require householders to have their systems serviced more regularly. In more extreme cases, it may be necessary for householders to substantially upgrade or even replace their existing systems. Costs Estimated costs are as follows: The Department Implementation of the new inspection and monitoring system will require the Department to undertake a small number of additional administrative responsibilities, for example, recording statistical data and supporting the rollout of a public information and awareness campaign. However, the impact is not expected to be significant and will be met from existing resources. Environmental Protection Agency The EPA will be required to supervise the administration of the new system by the local authorities and to ensure that inspectors fully meet all criteria regarding qualifications, training and insurance. The Agency s costs will be recouped from fees charged for the registration of inspectors in similar fashion to registration of Building Energy Rating (BER) inspectors by the Sustainable Energy Authority of Ireland (registration fees under the BER process amounted to 1,000 for initial registration). Re-registration at intervals (to be determined by the Agency) will generate an additional income stream for the Agency (reregistration under the BER scheme amounts to 100). Water Services Authorities will be required to maintain registers of all domestic waste water treatment systems in their functional areas. They will also have a critical role regarding the issue of advisory notices in respect of failing treatment systems and verification checks where remediation works are required. A modest fee, which will not exceed 50, will be payable by households registering their treatment system. The fees received are intended to cover the administration costs of the water services authorities and management of the inspection programme in partnership with the EPA. Other Water Services Suppliers Group Water Schemes will not incur any costs as a result of the introduction of the inspection and monitoring system. Property Owners As stated above, householders will be required to pay a modest registration fee to register their on-site treatment systems. Registration will be valid for a period of five 8

9 years. There will be no charge to householders for inspections. Maintenance and de-sludging of on-site wastewater treatment systems so as to ensure compliance with the existing provisions of Section 70 of the Water Services Act 2007 would be expected to be on-going, irrespective of the introduction of a registration and inspection system. De-sludging, which is necessary at varying intervals depending upon the number of people in a household and the capacity of the septic tank used, costs approximately 200. Many owners of more technically advanced treatment systems have entered into maintenance contracts this is often a condition of their planning permission. For those currently operating and maintaining their systems correctly, there will be little or no additional costs, other than payment of the registration fee. However, it must be acknowledged that some systems will fail to meet the inspection criteria and will require remediation or upgrading. The costs of this are difficult to quantify and will depend on the nature of the problem identified during the inspection and the level of risk to human health or the environment. The inspection system introduced by Cavan County Council, based on bye-laws enacted in that county, revealed a failure rate of approximately 25% of on-site systems, with remediation costs averaging 2,500. However, extreme cases, requiring major upgrades or even complete replacement of on-site systems may occur and households falling into this category will incur high costs. For example, a new septic tank and percolation area could cost up to 4,000. More technically advanced packaged treatment systems can cost up to 12,000, with additional installation costs of 5,000. However, the number of properties which will require this level of expenditure is considered to be extremely low. Start-up costs Once-off start-up costs are anticipated in relation to the development of training for inspectors for local authority staff to familiarize them with the application of the new legislation. It is envisaged that training will be developed in-house, and delivered via the Water Services National Training Group, through its existing regional training network. Costs are not expected to be significant. Penalties Provision for significant financial sanctions for non-compliance with requirements is included in that legislation. However, it is not possible to estimate the potential income from fines as it is not practical to speculate on the likely incidence of non-compliance. Any such expenditure by householders will be avoidable though proper compliance with the legislation in the first instance, and it is not appropriate therefore to regard it as a cost for the purposes of this exercise. Benefits Enforcement Proceedings Avoided It is clear that Ireland could face very considerable financial penalties should outstanding matters in relation to the judgment not be resolved to the satisfaction of the Court. In its application to the Court in August 2011, the EU Commission requested that significant fines be imposed see Section 4 above. Ireland s defence against the Commission s request has been submitted for consideration by the Court and includes a commitment to publish the required legislation by the end of October It is therefore critical that the Bill is published without delay. Any penalties imposed in this case would fall to be paid from the Exchequer. 9

10 Reduce Risks to Human Health and the Environment It is envisaged that the proposed legislation will underpin a significant improvement in the protection of human health and the environment through improving the quality of ground and surface waters. Failing on-site treatment systems can: result in contamination of groundwater and surface water, which affects the quality of drinking-water supplies. create human health risks from the overflow or ponding of domestic waste water, contribute to lakes, rivers, estuaries and beaches becoming unfit for swimming, seafood production and the aquaculture industry, The requirement to carry out ongoing maintenance backed up by risk-based inspections will play a significant role in improving the performance of on-site wastewater treatment systems and help to reduce the risks to human health and the environment. Other Impacts Impacts on National Competitiveness: Any cost savings arising from not implementing the new legislation would be so small as to have no material impact on national competitiveness. The positive impacts on the environment will on the other hand have a beneficial effect. Improvements to water quality and the environment generally can contribute to the marketability of the green image of Ireland, with associated benefits for the tourism and food sectors. Impacts on the Socially Excluded or Vulnerable Groups: The resultant improvement in the environment generally, on surface and groundwater and therefore on drinking water quality will be to the particular benefit of vulnerable groups such as infants, elderly or immuno-compromised persons whose health might otherwise be compromised by quality-deficient water supplies. Other Impacts on the Environment: As indicated by the EPA, discharges of untreated or partially treated wastewater from on-site systems contribute to public health risks and negative environmental effects in most regions in Ireland. Wastewater from failing systems may accumulate on the ground, percolate into the groundwater or flow into nearby waterways, posing public health risks and causing damage to terrestrial and aquatic environments. It is envisaged that the proposed legislation will: contribute to the protection of Ireland s water resources by avoiding contamination of ground and surface waters by leaching or the direct flow of untreated or partly treated domestic waste water caused by malfunctioning or poorly maintained systems prevent the degradation of land by avoiding deterioration of soils or vegetation caused by contamination, salination, or erosion as a result of malfunctioning or poorly maintained systems protect amenity by avoiding adverse impacts on amenity, including unpleasant odours, degraded aesthetics and the presence of pests as a result of malfunctioning or poorly maintained systems. 10

11 Do the proposals involve a significant policy change in an economic market (including any impacts on consumers and competition)? Section 70 Water Services Act 2007 already places a duty of care on owners regarding proper maintenance of their septic tanks and other on-site waste water treatment systems. The proposals therefore do not involve a significant policy change. It should also be noted that use of an on-site waste water treatment system carries an environmental responsibility for householders in that the effects of improper operation and maintenance can extend beyond their property, with potentially serious consequences for public health and the environment. This in turn can impact on property prices and tourism potential. The condition of on-site treatment systems is therefore extremely important. Impacts on the Rights of Citizens The proposed legislation does not impact on the rights of citizens. The increased transparency and clarity of roles and responsibilities provided for in the legislation will facilitate awareness of those rights. The Overall Compliance Burden In general, for householders who are already meeting their obligation to ensure that their system does not cause pollution, the requirements will be minor. Therefore, the proposed legislation is not considered to impose a significant compliance burden. The registration fee will be set at a modest level and is necessary to cover the costs of administration and inspections. The registration process will be kept as simple as possible, with both on-line and paper format registration facilities provided. Where remediation work is necessary, the costs will have to be borne by the owner of the particular property. This is no different from the position with other household systems such as central heating, air conditioning or domestic appliances. It is expected that only in a minority of cases will major upgrading or replacement of a system, and significant outlay, be necessary. Insofar as financial support is concerned, the introduction of a grants scheme for any purpose must be managed within current budgetary constraints. The introduction of even a reasonably moderate scheme for septic tanks and other on-site wastewater treatment systems would have significant funding implications, given the number of existing tanks and systems in Ireland. The Department will keep under review the possible options to provide financial support to householders, whose systems are deemed, following inspection, to require remediation or upgrading. Any such support would have to have regard to the overall budgetary situation and to the financial position of individual households. With regard to tax relief, it should be noted that the benefit would be confined to those liable to income tax. It is possible that many of those residing in properties served by on-site treatment systems may be exempt from tax due to low incomes or tax reliefs for other reasons such as capital allowances, medical expenses etc. In any event, the new provisions are the minimum necessary to satisfy the EU Commission that the State is fulfilling its obligations. Non-compliance could entail a significant cost burden, depending on the level of related penalties imposed by the ECJ. 11

12 11. Other Options Considered Option 1 Do nothing The option of taking no action is included for benchmarking purposes, but with no realistic prospect of being pursued. Current arrangements, which do not include planned and proportionate inspections and enforcement, are not regarded as sufficient, for the following reasons. Exercising the do nothing option would, in the first place precipitate the imposition of significant financial penalties on the State by the ECJ (outlined previously). The objective of transposing the Waste Directive would not be achieved, leaving Ireland open to the initiation of further infringement proceedings by the EU Commission, Owners of properties served by septic tanks and other on-site waste water treatment systems would continue to operate without an appropriate inspection system and any directions to them (whether by the Minister or the EPA) in relation to compliance with requirements not to endanger human health or the environment would ultimately not be enforceable. Damage to the State s international image could have adverse knock-on effects on inward investment, including tourism. Option 2 Administrative Circular / Guidance An alternative approach could involve the Department issuing an administrative circular or guidance material in order to set out requirements. However, such instructions or guidance would ultimately not be enforceable, and no penalty could be attached to non-compliance. The onus placed on the State by the ECJ ruling would not be complied with in the absence of legislative authority to enforce the administrative provisions set out in such a circular. Option 3 Self-Regulation Self-regulation would place the onus on property owners to ensure that (a) their on-site systems were operated and maintained correctly and (b) inspections were carried out to certify that there was no risk to human health or the environment. While obviously lessening the regulatory burden and thereby removing or reducing costs, there are significant disadvantages to such an approach. For example, it could not be ensured that inspections would be commissioned or that remediation works would be carried out. This option is therefore regarded as unacceptable. 12. Consultations Undertaken In late 2010, the Department undertook consultations with key stakeholders. Over 190 stakeholders with a potential interest in the new legislation (including public bodies and representative organizations from the agricultural, environmental, industrial and rural sectors) were invited to make submissions regarding the draft inspection criteria and the implementation of an inspection and monitoring system for septic tanks and other on-site wastewater treatment systems. Over 50 submissions were received and all have been considered by the Department in the context of finalising the draft legislation. One of the suggestions most often received was the need for a comprehensive public awareness campaign to inform householders of the new arrangements and of their responsibilities. The Department is developing proposals for public awareness in consultation with key stakeholders including the National Rural Water Services Committee, the National Federation for Group Water Schemes and the EPA. 12

13 13. Conclusions The proposed legislation has been examined in the light of the principles of Better Regulation in the course of the preparation of this Screening Regulatory Impact Assessment, namely: Necessity: The legislation is necessary to comply with the State s obligation to transpose the EU Waste Directive, and to help avoid the escalation of enforcement action by the EU Commission following an ECJ judgment regarding existing Irish legislation in the field of on-site waste water treatment systems serving single houses. They also reflect recommendations regarding the monitoring and inspection of on-site systems contained in: The 2009 Report by the Oireachtas Joint Committee on the Environment, Heritage and Local Government, and The 2008 National Study carried out by ESB International and WYG Environmental Consultants on behalf of the Western River Basin Management District Effectiveness: The legislation is considered to be properly targeted, and to reflect fully the requirements of the EU Waste Directive, which it is intended to transpose. The provisions of the legislation (including penalty provisions) will provide a comprehensive legal framework to enable the requirements of the Directive in relation to ground water protection and public health protection to be properly transposed and enforced. Proportionality: The Department is satisfied that the option chosen is appropriate, and that the regulatory burden imposed is not too onerous on those who are subject to it, or charged with its enforcement. The various stakeholders consulted have expressed their agreement in principle to its provisions. Transparency: The drafting process for the legislation has involved widespread consultation with stakeholders affected by the changes in the existing position. The legislation itself considerably increases the level of transparency for owners of properties served by septic tanks and on-site waste water treatment systems in relation to their responsibilities and consequences of non-compliance, and represents a substantial step forward in this respect. Clear lines of responsibility are established in relation to all on-site treatment systems. Accountability: The legislation sets out clearly the responsibilities of premises owners, inspectors and the water services authorities, and provide for clear and enforceable sanctions in the event of non-compliance. Consistency: The legislation ensures that all owners of un-sewered properties are subject to similar levels of general regulation, and that they are subject to the same enforcement sanctions. They are also consistent with the requirements of the EU Waste Directive. There was general agreement amongst stakeholders consulted during the drafting process that the registration system and risk-based inspections provided for in the proposed legislation represents the most suitable approach to establishing an appropriate, transparent and equitable system to regulate the management and operation of on-site waste water treatment systems in accordance with the requirements of the EU Waste Directive. 13

14 The effective operation of on-site wastewater treatment systems is only as good as the degree to which they are properly operated and maintained. Householders are, or should be, aware of the necessity to operate and maintain their systems correctly so as to protect human health and the environment. In addition to the maintenance guidelines normally provided by manufacturers and installers of septic tank and other on-site systems, information regarding the necessity to carry out regular checks and de-sludging procedures is widely available in the form of leaflets issued by the EPA and local authorities and also on the internet. A public information and awareness campaign will form part of the roll-out of the new registration and inspection system. The additional regulatory burden imposed by the legislation is therefore not considered to be significant. It will ensure equitable treatment of all owners / occupiers of un-sewered properties. In the circumstances outlined, and in the light of the analysis undertaken in this document, it is not considered that the compliance burden arising from the proposed legislation is sufficient to merit the preparation of a full RIA, and it is intended now to proceed to make the legislation forthwith. Implementation Group(s): A task force was formed in 2009 by the Department to consider the options available in the light of the case brought by the EU Commission against Ireland. It included representatives from the Water Services, Building Standards and Planning Sections of the Department. It also included representation by the EPA and City and County Managers Association and the National Rural Water Services Committee. The task force helped to guide the drafting of the necessary legislation and related administrative and operational procedures. The Department will continue to work closely with the EPA, the local authorities and with the National Rural Water Services Committee during the implementation of the new legislation. Decisions on the establishment of any group(s) to oversee the implementation will be made in consultation with the EPA. 14